Employment Update from Hunter Adams – Q3 2024

Since the election of a Labour Government in July, the focus for many employers has been on Labour’s promise of changes to existing employment legislation. These reform proposals have now been released in the form of the Employment Rights Bill, which is aimed at reshaping workplace protections and workers’ rights across the country. We have highlighted the key aspects of the Bill later in this update, but firstly wanted to focus on the previously confirmed, upcoming change due to come into effect on 26 October 2024 that introduces a new proactive duty for employers to prevent sexual harassment.

Sexual Harassment

The new duty on employers to prevent sexual harassment will be accompanied by updated guidance from the Equality and Human Rights Commission (EHRC). For now, we’ve included some key highlights below:

The definition of sexual harassment from the Equality Act 2010 is when a worker is subjected to unwanted conduct of sexual nature which has the purpose or effect of:

• Violating a worker’s dignity; or
• Creating an intimidating, hostile, degrading humiliating or offensive environment for that worker.

The conduct does not need to be sexually motivated, only sexual in nature and an individual can experience unwanted conduct from someone of the same or a different sex.

Purpose means intention of alleged harasser. If the harasser’s purpose is do any of the above, this will be sufficient to establish harassment. It will not be necessary to look at the effect that conduct has had on the worker.

Effect means the impact on the recipient.  It is possible that the behaviour from the harasser amounts to harassment even if that was not intention of harasser.

Only one of these, the purpose or the effect, need to be present for sexual harassment to have occurred.

Currently employers can defend claims of sexual harassment and other forms of harassment if they can demonstrate that they have taken ‘reasonable steps’ to prevent the harassment from occurring.  ‘Reasonable steps’ under the new duty are very similar to the current steps that employers should be taking, however, in reality, currently, employers can’t often show that ‘reasonable steps’ have been taken.

The original version of the Bill stated that employers should take ‘all reasonable steps’, however, this was diluted through the legislative process to only include ‘reasonable steps’.  With the recent change of Government, Labour have indicated that they will review this and look to change this back to ‘all reasonable steps’, so all employers should continue to keep up-to-date with changes in this area and be mindful of any changes that will require updates to policies and working practices as a result of any such changes.

The new duty is clear that the focus is on employers preventing sexual harassment as opposed to just dealing with it when it happens.  If sexual harassment has occurred the focus then moves to the employer ensuring it does not happen again.

The updated EHRC guidance is also clear that the new duty applies to an organisation’s own employees and 3^rd parties, therefore employers must also consider their approach to preventing and managing sexual harassment from 3^rd parties including but not limited to customers, clients and suppliers.

If an employer fails to comply with the new duty, potential consequences may include:

• The employer being investigated by the EHRC.
• If an investigation finds that there has been a breach of the duty, the EHRC may issue a notice confirming the breach and requiring the employer to prepare an action plan to prevent future breaches.
• The EHRC entering into a formal, legally binding agreement with the employer to prevent future unlawful acts.
• The EHRC asking the Court for an injunction to restrain an employer from committing an unlawful act.

When considering a sexual harassment complaint, the ET must consider if the preventative duty has been satisfied. If the preventative duty has been breached, the ET can increase compensation by up to 25%, taking into consideration the extent of the breach. Employees cannot raise a standalone claim in relation to an employer breaching their duty. It is for EHRC to enforce the new duty and for an ET to enforce compensation if a breach is found.

If you haven’t already taken steps to comply with the new duty, now is the time to do so. To do this, we recommend that you:

1. Develop an effective sexual harassment policy. This should be a separate policy or where included in current harassment policies, it should be clearly defined as a section in its own right.
2. Engage your colleagues by:
   1. ensuring all workers are aware of – what behaviours may be considered as sexual harassment, how they can report sexual harassment, your sexual harassment policy, and the consequences of breaching the policy;
   2. ensuring managers are aware of the signs that harassment may be occurring and understand the importance of taking action; and
   3. proactively being aware of what is happening in your workplace rather than waiting for a complaint to be made before any action is taken.
3. Carry out a risk assessment to consider factors that might increase the likelihood of sexual harassment and the steps that can be taken to minimise them. Ensure any reasonable steps that were considered but not actioned have been documented and include the rationale for this.
4. Encourage reporting and consider whether introducing a reporting system which allows anonymous reports to be made would be beneficial to your organisation.
5. Provide regular training to all colleagues, including specific training for individuals in a management role, or those developing into a management role. Training should include what sexual harassment in the workplace looks like, what to do if you experience it, and how to handle any complaints of harassment. Records of training delivered and who attended should be retained in line with data protection retention requirements.
6. Deal with complaints in a timely and fair manner. Keep an incident log that sets out complaints raised, actions to be taken (or already taken), as well as a record of who the actions are assigned to and the date the action must be completed by.
7. Take steps in relation to third parties by assessing any risks and putting preventative measures in place.

If you would like an Sexual Harassment policy drafted, or to discuss any other support in this area, please get in touch with your H100 focal point.

New Government proposals – Employment Rights Bill

On 10^th October the Government released its long-anticipated Employment Rights Bill and we have highlighted some key aspects that warrant your attention:

• Flexible Working – In April 2024, the overhaul of the flexible working regime saw the right for employees to make a flexible working request a day one right. Employers will be expected to consider any flexible working requests made from day one, and say yes unless they can prove it is not reasonably possible.
• Family Friendly – Paternity leave: Fathers or partners to be eligible from day one of employment, instead of 26 weeks. Unpaid parental leave: Parents to be eligible from day one of employment, instead of one year. Unpaid bereavement leave: To become a “day one” right for workers. The Bill also proposes to ban the dismissal of women who are pregnant, on maternity leave, and during a six-month return-to-work period, except in ‘specific circumstances’. This protection will also be extended to employees in respect of adoption, shared parental, neonatal care and bereaved partners, paternity leave and for a period after returning to work from taking these forms of leave.
• Unfair Dismissal – In order to be able to raise an ordinary unfair dismissal claim, currently, an employee must have at least 2 years’ service with an employer (with some exceptions). Under the new Bill the 2 year qualifying service requirement will be removed altogether, making this a day one right. A new statutory probation period will be implemented for companies’ new hires to allow for a proper assessment of an employee’s suitability for a role as well as reassuring employees that they have rights from day one. The government will consult on the duration of the probation period, with the stated preference being 9 months.
• Employment Status – The UK employment law currently recognises three categories of employment status – employee, worker, and self-employed, with workers having fewer employment rights than employees. The Labour Party’s pledge is that they would introduce a single “worker” status which will combine employees and workers into a single category. This would effectively widen the scope for full employment rights to all workers.
• Zero hours contracts – The Government intends to put  new rules in place to stop the “abuse” of “exploitative” zero-hours contracts. The intention is that employers will need to offer qualifying workers on Zero hours contracts and those with a ‘low’ number of guaranteed hours, who work more than these hours, a guaranteed hours contract which reflects the hours they work over a reference period.
• Fire and Rehire – The Government proposes to end fire and rehire by introducing a strengthened Code of Practice which will limit the practice only to situations where it is genuinely necessary for the business to remain viable.
• Statutory Sick Pay (SSP) – The waiting days for employees to qualify for SSP will be removed, making it available from the first day of absence (currently SSP is only payable from the 4^th consecutive day of sickness). Additionally, the Lower earnings limit for SSP will be removed but the Government will consult on what this new lesser level of sick pay for lower earners will be.
• Enforcement of rights – The Government have pledged that they will introduce a single enforcement body, the Fair Work Agency (FWA), for all employment matters.
• Redundancies – The obligation to collectively consult on redundancies will be changed from 20 or more employees at one establishment, to that number across all UK locations that a business operates.

We will be keeping a close eye on the proposals, amendments to these, and their progress; and will keep you informed as these become clearer. However, we recommend that in the meantime you review current working practices, policies and procedures to ensure that they are not only up to date with current legislation but are also prepared for any new updates that will certainly be coming our way in the future.